Children at the Border Raise Question of Who Is a Refugee

A federal employee is seen walking past cribs inside of the barracks for law enforcement trainees turned into immigrant detention center at the Federal Law Enforcement Center (FLETC) in Artesia, N.M., Thursday, June 26, 2014.Juan Carlos Llorca / AP

Many of the children and families arriving at America’s southern doorstep, overwhelming shelters and navigating an already clogged system, are fleeing unrelenting violence or economic destitution.

But does that make them refugees? Not in the eyes of the law.

U.S. law considers refugees to be people displaced from their countries, processed at refugee camps in countries they've fled to and eventually resettled in the U.S. But those arriving at the border asking for refuge fall under what U.S. law defines as asylum seekers. President Obama is proposing that many be speedily returned to the places they fled to attempt to staunch the backup.

But immigration and child advocates say that what's happening at the border bears the same signs of refugee crises that are seen around the world.

“Women with children, young women with children crossing the border, is a sure sign of a refugee flow. This occurs in refugee flows around the world including right now in Syria, in the Middle East, in Thailand and other places around the world,” said Kevin Appleby, director of migration policy for the U.S. Conference of Catholic Bishops. “They’re the most vulnerable group susceptible to violence and that is what we are starting to see here.”

Democrats allied with immigration advocates fear that the Obama administration, eager to telegraph a tough stance towards families considering sending unaccompanied minors to the United States, will take shortcuts that undermine the children’s safety and human rights.

The president asked Congress on Monday to pay for more immigration judges to be sent to the border to process the cases of families and individuals and to launch an “aggressive deterrence strategy focused on the removal and repatriation of recent border crossers.”

He also has asked Congress to give Homeland Security Secretary Jeh Johnson flexibility to send unaccompanied children back to non-contiguous countries such as Guatemala, Honduras and El Salvador which is now prohibited under current law.

About three-fourths of more than unaccompanied 52,000 children that have arrived in the U.S. since Oct. 1, 2013, are from those countries. The remainder of the total are from Mexico and are almost immediately sent back.

Obama said the influx is partly due to Congress' failure to pass immigration reform. He said he plans to take steps on his own on immigration. "This is not a situation where children are slipping through. They are being apprehended. The problem is our system is so broken, so unclear that folks don't know what the rules are."

If DHS has authority to speed up the return of children to their home countries, advocates and Democrats said, children may be rushed through the deportation process without representation and without an understanding of the poverty and violence they face at home.

Some of the children and families qualify for asylum status or other immigration relief, said Ruthie Epstein, legislative policy analyst at the American Civil Liberties Union.

Already, the administration has made a turnabout from one of Obama's earliest policy decisions, to severely cut back on detaining families, as was done under the Bush administration. The administration opened a family detention facility in Artesia, N.M. last week and is looking to open more.

“The overall focus on stemming the flow and reinforcing borders along with this very strong message to children and families that they should not come because they will sent back really raises concerns of violations of international law,” said Michelle Brané, director of the migrant and justice program at the Women’s Refugee Comission, a non-profit.

She said one of the basic tenets of refugee law, solidified after the Holocaust with the Refugee Convention, forbids rendering of a true victim of persecution or torture to their persecutor.

In the short term, the president’s request will have to wait. Congress is on a week-long recess for the Fourth of July holiday.